Oh fantastic….

“Effective liberty.” Two of the most chilling words you’ll ever hear. Crooked Timber wants the government policing speech to protect minorities. At last they’re honest about the true agenda of the left. Notice this isn’t about “hate-crimes”. It’s about “hate-speech.” But the motivation behind hate-crime laws – a loathing of liberty and group-think victimology – is still out there. …. Once you start deciding what speech is or is not acceptable, we no longer live in a free society. We live in a tyranny – where Crooked Timber and the benign left will call the shots and enforce their orthodoxy.

Let’s put things in simple terms. Most of the people who discuss this topic, and especially most Americans, have some Lockean view of individual rights in mind, rights that stop where the other guy starts. Government, seen as some alien policeman, only has a legitimate role in stepping in to stop people harming one another, where the paradigm cases of harm involve punching people on the nose or stealing their stuff. Since speech isn’t like that, government has no business regulating it.

Well I see where you’re coming from. But I think it’s from the wrong place. The right frame, in my view, is to think of the state as “we, the people” and to ask what conditions need to be in place for the people, and for each citizen, to play their role in effective self-government. Once you look at things like that then various speech restrictions naturally suggest themselves. First, there are the obvious procedural ones, the rules for running the meeting, as it were. Second, there are the financial ones: we can’t have the conversation dominated by those who are rich enough to buy up all the megaphones. Third, if we are trying to implement such a conversational ideal in a society riven by deep ethnic or religious divisions, we’ll need to take seriously the idea that despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens. This isn’t a matter of “the government” policing speech, it is a matter of us regulating our collective conversation.

However … and it is a big “however”, the states in which we live are a long way from that ideal of self-government. Given that they are at that distance, there are strong reasons to think that those who dominate government will abuse their power, we ought to be very wary about restrictions on hate speech, and we ought to be sensitive to the fact that any regulations will be subject to abuse (including by people who represent themselves as victims to gain an edge), may be counterproductive, and so on. Hence it is false to say—at least as some blanket proposition—that I (rather than CT collectively, some of whom may think I’m nuts, for all I know) want “the government policing speech to protect minorities”.

Small additional note. Sebastian writes in comments “The United States courts have some of the most extensive thinking about free speech recorded anywhere—complete with built in case studies.” Well sort of. The Americans have a long tradition of trying to discuss these things using the language of an 18th-century document. Given the difficulties of shoehorning a lot of real-world problems into that frame, that gives them a long history of acrobatic hermeneutics somewhere in the vague area of free speech. Some of it is even relevant. The trouble is that many Americans (at least the ones who comment on blogs!) can’t tell the difference between discussing the free speech and discussing the application of their constitution.

Small extra additional note. Someone might put the argument that the best way to regulate “the conversation” involves giving people 1st Amendment-style protections. They might be right about that. There’s a case to say that. But note that that’s a different argument from “government should only stop harm, and speech isn’t harm.”

Share this:

Most … people, especially most Americans, have some Lockean view of individual rights in mind, rights that stop where the other guy starts.

What a wonderful isolation of an American prejudice! I do not mean this sarcastically; I find all three of your restrictions immediately suspect, not because I necessarily disagree with any of them, though of course the third is the hardest to justify, but because when anyone tells me that free speech must be curtailed I reach for my wallet. I will consider the matter,of course, but the immediate importance seems to me to be that civics courses count. If the First Amendment distorts Americans’ moral reasoning, surely some hope can be held for the fourth through ninth?

What’s the difference between politely arguing an offensive point and shouting it? Is one more hate speech than the other, and do we want the courts to decide such things? Shouting fire in a crowded building is a crisis moment, where words arguably becomes action, do we want to artificially create more of those moments? I don’t think so.

Some would argue that offensive speech can be harmful to minors; but even agreeing with that, adults should be what they’re called: “adults.” Life is and needs to be experience, and experience is often painful. I know rationalists are opposed to experience, but most people think that’s a problem. I don’t give a fuck if some whiney-assed neat-nick motherfuckers want to take their ball and go home when someone’s rude to them, but I’m not going to be lectured on civility by a Zionist concern troll right out of the last years of the Raj. It’s your rationalism that makes you so fucking unaware of just what your words mean. You’re argument Professor B. is lazy and half-assed. Come back to the sandbox and grow up.

Second, there are the financial ones: we can’t have the conversation dominated by those who are rich enough to buy up all the megaphones.

My experience of financial restrictions on speech (in the form of limits on political spending during elections in NZ) is that they therefore mean the conversation is dominated by those who already have the political power.

Third, if we are trying to implement such a conversational ideal in a society riven by deep ethnic or religious divisions, we’ll need to take seriously the idea that despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens.

But, since we are citizens of this society, we need to take seriously the idea that we will believe that the despised and stigmatized groups are in fact despised and stigmatized for good reason, and therefore do not deserve to get their voices heard.

There seems to be a contradiction in terms here. We are talking about a society that, on the whole:
a) really believes that group A is despicable and deserves to be stigmatised, and
b) is prepared to protect group A’s voices as they believe group A should not be considered despicable or stigmatised.

Does this seem psychologically likely to anyone?

(Note, I am not an American and have no commitment to the US constitution).

2.early is a good illustration of my first point: that Americans tend to theoretically value expression very highly, testing all abridgments against the crowded theater standard. 2.later is also a good example: Americans hold free speech to be sacred, and a challenge to it is vile blasphemy, hence the vitriol.

Though I don’t suspect you of collaboration with the Zionist Raj, I remain unconvinced of your argument, Mr. Bertram. I fail to see how curbing the expression of ethnic hatred would preclude its existence to a degree that would justify the liberty lost in the expression’s prohibition. In situations of immanent genocide, I might, but barring a measurable effect, political or otherwise, my cussed pragmatism forbids me from endorsing any state program proscribing hate speech. I’ll take a couple years of purgatory for this position, but they wouldn’t be the first.

Well, it’s been two and a half years, but I still can’t believe you co-wrote this:

We should also be mindful of the effect on our own members. There are a significant number of Jewish members of the Association, many of whom identify with Israel as the Jewish national homeland. We take no view here for or against Zionism. But we recognize that such members of the Association are bound to feel marginalized and excluded by this resolution.http://crookedtimber.org/2005/05/09/questions-and-answers-re-the-aut-boycott/

“(3) The Internet has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens.”

Better be more careful. I’m deleting my Sorel & Trotsky. And after they suspend the 2008 elections? Well, are they still planning to move Gitmo to Leavenworth?

“This isn’t a matter of “the government” policing speech, it is a matter of us regulating our collective conversation.”

This is not fair. What is being suggested is that the state can legitimately use its monopoly on coercive force to control what people can and cannot say. This is of course why the debate generates the kind of conflict we have seen thus far. I do not see the point of trying to frame the problem in a way that downplays coercion.

“we ought to be sensitive to the fact that any regulations will be subject to abuse (including by people who represent themselves as victims to gain an edge), may be counterproductive”

Fine but given our reasonable expectations about what political order and political authorities in such orders are like in even the most successful states I think we can have great concern given the vagueness of the third criterion for limiting speech “despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens.”

We see a strong push to further criminalise holocaust denial in the EU. It seems to me that this is not because of a worry that such denial threatens our ability to perpetuate historical accuracy on the holocaust, but because such denial is taken to most often be representative of an underlying hatred of Jews. Let us say that the case for criminalizing holocaust denial is at least debatable. In the context of current attitudes across Europe some Muslims have argued that public images of Mohammed should be criminalised for the same reasons holocaust denial is criminalised. It is a central concern for them in terms of respect, and such public images are representative of an underlying hatred of Muslims. I have a hard time rejecting the parallel outright but what the suggestion boils down to is the criminalisation of blasphemy, which seems to me to be totally inconsistent with an individualistic and free society.

The problem is not limits on speech as such, we have seen some examples of when this is clearly accepted in every democratic political order. Rather, the issue is using state coercion to ensure that people have the ‘right attitudes’ towards others. What confidence can we have for a definition of hate speech that moves in this direction and away from the much more limited direct harm by inciting violence criterion?

Singling out hate crimes, which is to say crimes whose victims were chosen because they belonged to a particular race, religion, gender, sexuality, or whatever, is no different from the distinctions routinely made in other criminal categories, as between murder and involuntary manslaughter. Intent matters, and hate crimes are tantamount to terrorism, attempts to spread fear throughout entire population groups.

As far as I know (which is not very far, and don’t take what follows too seriously) the intent of speech is less often considered than its content. (By the way, it’s okay to shout “Fire!” in a theater if it’s actually burning.) The standards for libel and slander differ between the U.S. and the U.K. In the U.S., truth is a complete defense while in the U.K. damaging truths may be actionable, making it friendlier to plaintiffs.

It’s entirely likely that around half of Africans are of below average intelligence, and that some Jews have killed babies, so it’s true that Africans are stupid and Jews are baby-killers. The same is true of Swedes, of course. Muslims are suicidal terrorists. Americans are drunks.

So long as true statements are privileged, hate speech remains possible.

Since the universe of discourse does not respect political boundaries, it’s less than obvious that local suppression of hateful speech would be useful, since the consumer of such can always find a channel broadcasting it. One difference between speech and violence is that the latter is always local.

“Most of the people who discuss this topic, and especially most Americans, have some Lockean view of individual rights in mind, rights that stop where the other guy starts.”

That’s because, in practical terms, some version of Lockean rights is the moral/ethical equivalent of prohibiting division by zero in math. Once you legitimize other sorts of ‘rights’, you can “prove” that rights require that rights be denied.

Rights are not an infinitely malleable concept, if you want your reasoning about them to be logically self-consistent. And if you don’t want that, you’re not really engaged in reasoning. Just something that looks a bit like it if not closely examined.

I’m sympathetic enough to what Chris says here not to want to take time before getting my coffee to disagree with any of it, but will mention, for anyone interested, that there are a couple of quite interesting books that do discuss the U.S. First Amendment in pretty much the sort of terms Chris sets out. See Owen Fiss, _The Irony of Free Speech_ and Cass Sunstein, _Democracy and the Problem of Free Speech_.

That is not right Brett. Chris’ complaint is that the Lockean view on rights is adolescent; it amounts to a refusal to take seriously the way we are deeply dependent on and affected by each other. I guess the big problem Chris highlights is a view on rights that only counts negative rights as legitimate. The problem is the denial of positive rights to give individuals a meaningful shot leading minimally decent lives as moral equals (e.g. a right to a decent education and a minimal level of respect within political society).

The strict negative rights view receives its full adolescent expression in Nozick. We can see the problem with taking the strong negative view on rights in arguments that say existing political orders are morally abhorrent because they are non-voluntary. Each individual should have the right to decide for themselves is they want or do not want to be bound by the dictates of political society. The political relationship should be completely consensual. The idea is that our relations with others should only be consensual, but this is simply a protest against the fact that one is born among others, needy and then with the capacity to affect others in various ways. Complaining about not being able to only participate in consensual relationships is like complaining that you haven’t been born with wings. It is just an adolescent denial of the human condition.

The “hate speech” ploy is already extensively used by wingers, especially white heterosexual Christian males, who feel that they are being singled out for hate based on their race, religion, gender, and sexual orientation. Mostly they’re just trying to muddy the waters, but some Christians seem to have developed a real sense of victimization.

Hate laws are usually thought to protect unpopular minorities, but they can’t be written that way. If the U.S. already had had a hate speech law, Bush would have appointed someone like Ann Coulter or David Horowitz to enforce it.

I wonder if one of the solutions to this could be “class action” type libel suits – if someone loudly proclaims all blacks are stupid criminals, then they should be available to be sued for that statement in the same way if someone proclaimed that a named individual was a stupid criminal (when he wasn’t). After all businesses can pursue libel cases where they can prove a loss, so why not any other group of people?

The standards for libel and slander differ between the U.S. and the U.K. In the U.S., truth is a complete defense while in the U.K. damaging truths may be actionable, making it friendlier to plaintiffs.

For good reason – there are ways of writing something that is true, but is severely misleading in the context it was put – so in the UK while speaking the truth is generally a defense in libel, it may need further support – or it can fail depending on the case if certain criteria are met.

Sullivan is an ass if he cannot distinguish between a collective blog and an individual, and a philosophical proposition and a legislative one.

despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens.

But it is not clear why despised and stigmatized ethnic or religious groups should be protected against discourse that reinforces their status anymore than than similarly situated individuals or other types of groups should be so protected, if the aim is to create an effectively democratic polity. Moreover, the rationale should be preventive not just reactive — stopping discourse that seeks to make others despise and stigmatize others should be similarly restricted.

Put differently, I don’t see why the condition “in a society riven by deep ethnic or religious divisions” is necessary. It certainly makes the issue more salient, but it seems that hate-speech as such lacks justification regardless of the societal tensions in the polity.

Re the “speech cannot be harm” position. Speech is not harm in the way that physical violence is harm. This issue came up over campus speech codes: if speech could be harmful, why was counter-speech by university official not the appropriate sanction versus fines, suspension, or expulsion (all sanctions backed by physical coercion)?

The reasoning behind the position that speech can be harm is not that hate-speech against a person is like punching a person. There is an emotional impact to speech, but the implicit argument against hate-speech is that it reinforces marginalization and stigmatization by persuading third parties to accept the hate-speech content. For hate-speech to have its main effect, it must be believed to some degree by citizens other than the speaker and the victim. This raises serious questions about the capacity of citizens to participate in democratic politics if we regard them as needing protection from false ideas.

John Emerson: Hate laws are usually thought to protect unpopular minorities, but they can’t be written that way. If the U.S. already had had a hate speech law, Bush would have appointed someone like Ann Coulter or David Horowitz to enforce it.

Can’t say I agree with Emerson about much, but he’s showing some signs of creeping libertarianism. The first step is to imagine that your political opponents rather than your allies have their hands on the controls of some powerful new instrument of the state. The second step is to have the foresight to oppose the creation of this mechanism in the first place.

I might accept, BTW, that the reduction of bigotry is a legitimate goal of government but absolutely not that criminalizing speech is a legitimate approach — the potential for abuse is far too great.

I am the only one to take offense at the bizarre paranoid hysteria of Sullivan’s remarks? On the substance I personally am with Kamm and against Bertram and Rose, but Sullivan’s argument that Bertram is a tool of a left-wing conspiracy who has incautiously let the mask slip to reveal the evil tyrant-in-waiting — this is insanity. Sullivan belongs in a loony bin along with the Napoleons and the Jesus Christs. He’s not participating in a civil public debate and he shouldn’t be treated as if he is.

M, this post was about limitations on hate speech, not legislation dealing with hate (or bias) crime. If you really find something “Orwellian” in the concept of punishing criminals differently based on the impact of their crimes then there’s not much hope for you.

Paul Keating once said “if you change the government you change the country”. He was working on the idea that what leaders say has a lot more effect than what individuals say, and what the institutions which lead our society – governments and courts, primarily, but also schools and universities – say has more weight than what individuals say. It seems like most of the commenters here don’t understand just how much power the courts have to change ordinary people’s perception of what is believed about a group, and how much power the government has to control the atmosphere of hatred in which some people have to live their lives.

If anyone doesn’t believe this is the case, they should try being Aboriginal or Asian in Australia between 1994 and 2000 – or Muslim after 2001. How the government responds to hate speech makes a big difference to how people experience it. Unless you are an idiot, and believe the libertarian lie that peoples have no relationship to their broader society or their government, you have to accept this. And unless you also accept the modern nationalist lie – that there are no inequalities in the modern state, and our societies are perfect except for foreign criminals – then you also have to accept that hate speech will be real. The combination requires government action. And I don’t see any of the anti-hate-speech-law folks coming up with any alternatives. Except “walk away”. Which is only an alternative until you see neo-nazis beating the shit out of your neighbours.

You come from the country that banned the Sex Pistols from the radio. I’m sure you agreed with that decision, even as a child. In the same year the ACLU sent a jewish lawyer to defend the American Nazi Party’s right to march in front of the homes of holocaust survivors in Skokie Illinois. My parents were on the staff and board of that organization in the state where I grew up. I agreed with that decision then and now.

I would say, in fact, that the first amendment tradition has a terribly distorting effect on American public discussions of free speech (even though lots of the jurisprudence and academic work is thoguhtful and useful), and Sullivan’s complete misreading of your post would seem evidence of that if I didn’t suspect it was deliberate. (In other words I disagree with bloix that he belongs in a looney bin, because I suspect he is being straightforwardly dishonest).

Here’s a question for all the die-hards: is there a fundamental human (moral) interest in being able to use racist and sexist speech to express contempt for others? I think not, and I’d like to see the argument that there is. Now, is there a fundamental human interest in being able to participate in public matters as an equal (at least when one is an equal)? I think there is. If you agree then you do not think there is a basic human right to use hate speech hatefully. You might think either that hate speech causes no harm, or that any regulation is likely to do more harm than good, or both, and in that case you would oppose a prohibition. But it would seem strange to demand that those fundamentally politicial judgments be taken off the democratic table and place in the hands of the courts, by protecting hate speech with a basic right and judicial review. Me, I think it is obvious that hate speech is harmful (in certain places, in certain contexts, to certain people). I also think it is obvious that regulation is fraught with dangers. Dangers much like the dangers that attend the options in all sorts of other matters that should be subject to democratic deliberation.

You come from the country that banned the Sex Pistols from the radio. I’m sure you agreed with that decision, even as a child. In the same year the ACLU sent a jewish lawyer to defend the American Nazi Party’s right to march in front of the homes of holocaust survivors in Skokie Illinois. My parents were on the staff and board of that organization in the state where I grew up. I agreed with that decision then and now.

oooh, can we all play this game? You come from the country that blacklisted Communists for refusing to inform on their friends, whereas I come from the country which gave refuge to Karl Marx to advocate violent revolution and provided him with a library to write his book in.

Seth – as a Jewish kid from Chicagoland you should know that it’s neatnik, not neat-nick.
“Nik”, originally from Russian, means a person. Early uses in the US among Jews included all-rightnik and nogoodnik, but it really took off with Sputnik, which gave birth to beatnik (a red-baiting smear of the Beats), neatnik, peacenik, refusenik, etc.

Yes, Daniel, I’d like to play too. When Nazis marched through our streets our grandparents tried to run them off the streets, risking life and limb to do so, against the efforts of our government to protect them. Our grandparents fought to get a national health insurance system, a better welfare state. Then, when the Nazis tried to stage a comeback, in the 70’s, spewing hate through the immmigrant communities they marched through, we didn’t put our political efforts into defending their right to do so, but tried to demonstrate to those communities that they were welcome and the Nazis were not.

I am the only one to take offense at the bizarre paranoid hysteria of Sullivan’s remarks?

Actually, I was just about to post my weekly “Would someone please explain to me why any intelligent person should ever give a shit about what Andrew Sullivan has to say about anything?” bleg when I read your comment, bloix. So, to answer your question: No.

OTOH, I’m quite excited by the turn this thread has taken, now that we have the alt-comedy stylings of Seth Edenbaum thrown into the mix. I look forward to hearing about how anyone who disagrees with his passionate First Amendment absolutism needs to have their fucking teeth kicked in.

‘The right frame, in my view, is to think of the state as “we, the people”…’

And there you have it, folks. This is the heart of the evil. The (extremely illiberal and indeed totalitarian) fallacy of conflating the state with its subjects, elaborated by the invocation of such utterly mythical entities as “collective conversations”, is the frame on which this whole argument hangs.

harry b: of course there is a fundamental human interest in being able to use racist and sexist speech to express contempt, because (a) certainly contempt is sometimes justified, and (b) racism and sexism might be justified, with a probability that is very very small but not zero. I am strongly convinced that they are not in fact justified, but not convinced with such strength that I am willing to countenance the violent suppression of those who disagree; and I regard those who would countenance such violent suppression as arrogant. Nor are racism and sexism special in this regard; there is no proposition whose truth I believe with such vehemence that I’m willing to violently suppress the proponents of an opposing view.

Because I don’t hold the fantasy view of the state as “we, the people”, but rather regard it as what it is, always and everywhere: an institutional instrument for the legitimation of mass violence. And so I see “hate speech” laws as nothing more or less than what they are: instances of the suppression by mass violence of speech with which the leaders disagree.

least successful attempted suppression of freedom of speech ever? (probably not but the-ban-that-made-my-record-a-hit is a whiskered story in the UK)

(anyway, a less weirdly phrased version of this story: certainly the bbc itself refused to play “God Save the Queen” during daytime programming in and around its release date — ie made exactly the decision a commercial station makes every day, when it chooses between what it will feature and what it won’t, depending on what it believes its listeners want to hear, and don’t — and is RUMOURED also to have fiddled the charts that week, so that GStQ only got to number two, after Rod Stewart… tho no concrete evidence has ever emerged either way, the rumour is very widely believed; also many local councils refused to allow the pistols to play in their clubs, citing public order issues, obscenity laws etc) (Questions were certainly Asked in the House also but there was no pistols-related legislation that i’m aware off)

(later they won two landmark legal decisions of course– one OKing public displays containing the word “bollocks”; the second establishing that under a certain age, if you sign a contract disadvantageous to you, the contract can be nullified on the grounds of your inexperience and legal incompetence) (both of these dredged up from memory only)

*way* offtopic but: i’m always hearing that Sputnik —> beatnik but i’ve never understood why it would occur and be accepted; it seems such a jump in category! When/where was link a. made, b. recognised, c. picked up on and repeated?

“Here’s a question for all the die-hards: is there a fundamental human (moral) interest in being able to use racist and sexist speech to express contempt for others?”

Here’s a question for you; and I’ve asked it before: who decides the distinction between offensive ideas – which I think you would defend on grounds of free speech [am I wrong?]- and the offensive manner of delivery of those ideas: between ideas and rhetorical devices?

What my obsession regarding this place comes down to concerns the indifference to the importance -significance, literally: signification- in the physical act of communication. Ideas are immaterial and general. speech is material and specific. Nearly every author on this blog ignores the distinction, as they fail to understand the justification -the moral pessimism- behind the choice for the rule of law. That’s why Harry Brighouse can ask a question that’s so irrelevant to the debate. Since I referred to my parents already I’ll quote my mother as I have before on Rawls: “He’s not interested in people, he’s interested in ideas.”
It wasn’t a compliment when she said it about Rawls and it’s not a compliment here when I say it about the intellectual bureaucrats at CT.

Does Andrew Sullivan think that “Crooked Timber” is a person’s given name? Surely he’s familiar with the concept of a group blog. (“See, it’d be like saying that ‘The Chris Matthews Show’ says this or that, when sometimes it’s really you or someone else…”)

I thought the post was a reasonnable discussion, especially the articulation of the main point with the paragraph starting from however and like Harry B and Chris B, I believe some citizens of the United States really should learn to distinguish the constitution of the United States and the Gospel.

I don’t think I have anything substantial to add to the abstract case but I will remark that my home state, though as democratic as could be, enforces pretty severe restriction on free speech: hate speech, holocaust denial, genocide denial in general are banned and regularly prosecuted. Under those laws, Limbaugh or Glenn Beck could not broadcast half a show before being sued. I believe that in the last 10 years this laws have been enforced (they are relatively recent), they did not do much good. Especially, it is quite unsettling to see police unions succed in banning songs containing offensive lyrics (on the ground that they incite hate against policemen) or to read about the condemnations of Edgar Morin (I will leave interested readers google the specifics of that case lest I derail this thread).

Perhaps a way out is not to ban hate speech but to require that minimum speech time be granted to opposing view. You want to blather about homosexuals causing wildfires in san Diego (this is true), fine, but your outlet is then required to give space to a dissenting voice, say a group promoting LGBT rights.

Harry, Sullivan’s view of the 1st amendment is an immmigrant’s view–it isn’t as if he’s unfamiliar with alternatives. And the fundamental human interest involved is the right to speak what one sees as the truth. The same interest that justifies allowing people to proselytize for what others know to be false religions or false political programs. The interest in participating in public matters doesn’t require more than that each has the same formal right to advance his view of the truth.

More interestingly, what do you mean by “at least when one is an equal”? I thought that was the premise to justify the restrictions generally–I didn’t think it could be used ad hoc, picking and choosing.

Here’s a question for you; and I’ve asked it before: who decides the distinction between offensive ideas – which I think you would defend on grounds of free speech [am I wrong?]- and the offensive manner of delivery of those ideas: between ideas and rhetorical devices?

Me: obviously, in the US, the answer is the 9 learned judges on the Supreme Court. Much better qualified than me and other less well educated and clever people to make such important decisions. In the UK, of course, it is a decision that can be seriously debated by elected officials and voters, who know that what they think and how they act will have some effect, and therefore have to take responsibility for what they decide. I can see why it might be better to put the decision in the hands of 9 eminently well-qualified members of a ruling elite. But if I were claiming that my opponents were insensitive to the material reality I would certainly not pretend that the position I was arguing for were one in which no-one was making the decision I was unwilling to devolve to the poor stupid masses.

I think what goes wrong with people like Sullivan, Will, et al: they conflate things like use of “The N word” with things like saying there shouldn’t be welfare, or not affirmative action, or like Cosby says about blacks’ own habits being self-destructive etc. The former is true hate speech and fair game to suppress, the latter is true political opinion and needs to be protected speech. I know there’s a gray area, but this shouldn’t be too hard to accept and agree on.

I know that Sullivan knows what the alternatives are, that’s why I think he’s being dishonest.

I didn’t mean much by the parenthetical semi-qualification. I was just allowing the possibility that people who have been found guilty of very serious crimes might have forfeit some of their rights (like the right to freedom of association which we generally think they have forfeit, and possibly the right to participate as equals in public deliberation and decisionmaking). I know this is usually understood, but I wanted to put it aside (and failed!).

Oh, and yes, exactly, to what neil b says. I think there is a very strong case that hateful epithets can be distinguished and treated differently from propostional content, and do not merit protection under “the right to speak what one sees as the truth”.

I almost posted a comment here like Sullivan’s, but fortunately I actually read Bertram’s post and saw that he was arguing that the government has a legitimate interest in eliminating bigotry (a statement with which I agree) and NOT arguing that the government ought to run out and ban hate speech.

Uuuhhh, “Far from liberty being endangered by hate-speech legislation it may—and whether it is depends very much on the specific social and historical circumstances—ensure that many people continue to enjoy effective liberty.”

I can see why someone like Sullivan (whom iirc devoted an entire issue of the New Republic to discussing The Bell Curve) would outraged by the idea that the state should seek to eliminate bigotry. As a someone once said:

In one word, you reproach us with intending to do away with your bigotry. Precisely so; that is just what we intend.

Uggg, talk about trying to distract from the important central issues.

I think most people take talk of legislating and restricting hate speech to be implying that such limitations can legitimately be made part of the legal system of a state. Qualifications that we need to be careful in making such laws does not give us reason to think we are taking about something else, and nor do the ‘may’ ‘can’ ‘could’ ‘might’ qualifications.

“Even if the elimination of bigotry were not a legitimate part of public policy, the elimination of its public expression might well be, for the reasons having to do with the freedom and equality of citizens I just mentioned.”

“They may have a legitimate interest in speech that would fall foul of hate-speech legislation, which is one reason to be very wary about passing such legislation and to be careful in formulating it, but hate-speech, as such, has no value and hence no claim to protection.” (i.e. when we can identify hate speech it is legitimate to make it illegal, and we can if we are careful identify it)

“we ought to be very wary about restrictions on hate speech,” (NOT we ought not to restrict hate speech)

There is an unfortunate conflation (in some of the comments in these threads) between speech that is directed at religions, political movements and their followers, and speech that is directed at racial and ethnic groups. Christianity, Judaism and Islam deserve no protection. Bring on the blasphemy! Bring on the cartoons!

But I am divided about (virulent, inciteful) speech targeting, say, Blacks, Arabs or Jews (the ethnic group, e.g. atheists or other identified as ‘Jews’ by accident of birth). I would not give such speech a blanket pass.

#35- “beatnik” was coined by the gossipy San Francisco columnist Herb Caen in 1958, about 6 months after Sputnik. I don’t believe Caen was Jewish (he was born in Sacramento and his funeral was in a cathedral) – although “Caen” looks suspiciously like a Frenchified “Cohen” – and it’s said that his inspiration was Sputnik, not the Yiddishism. (But “nogoodnik” appears in “Guys and Dolls,” which was released as a film in 1955, so he may have been influenced by that as well.) “Beatnik” first appeared in this item in his column:

“Look magazine, preparing a picture spread on S.F.’s Beat Generation (oh, no, not AGAIN!), hosted a party in a No. Beach house for 50 Beatniks, and by the time word got around the sour grapevine, over 250 bearded cats and kits were on hand, slopping up Mike Cowles’ free booze. They’re only Beat, y’know, when it comes to work . . .”http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/1997/02/06/MN18715.DTL

The word became widely known through the early 60’s tv show “The Many Loves of Dobie Gillis,” which featured Bob Denver as the beatnik Maynard G. Krebs.

Alan Ginsberg and Jack Kerouac both hated the name, and Ginsberg said that it was intended to imply that the Beats were un-American.

if we are trying to implement such a conversational ideal in a society riven by deep ethnic or religious divisions, we’ll need to take seriously the idea that despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens.

See, what you people don’t seem to be grasping is that the Ku Klux Klan can legitimately claim to be a “despised or stigmatized group,” just like the NAACP, and if the decision had been made by a popularly elected American government back in, say, 1950, whether to stop the Klan from bad-mouthing the NAACP or instead to stop the NAACP from bad mouthing the Klan–well, the result might not be what you would prefer. Note in this connection that the Klan was then essentially defending the staus quo, while the NAACP was trying to change it, so if somehow both were silenced, the Klan would win . . .

Thank goodness for people like bloix — worth readin this otherwise rather dispriting thread just to get to that, bloix!

aaron — Chris indeed arguing that restricting hate speech might be a legitimate aim of the state. He is also arguing that whether we should restrict or elminate hate speech is something about which a healthy democratic polity will have real debates, in which the reasons for allowing and the reasons for banning hate speech will come into the public domain and get weighed, not just by 9 appointed members of the elite, but by everyone.

I hope he’s going follow up with an attack on Brown’s proposals for a written constitution.

And now to the topic:
How does one “eliminate hate speech”? Does one put the speaker in prison? Is there a net increase or decrease in human freedom and well-being if people who say the n-word are required to spend 60 days behind bars?

In my view, the criminal law is a blunt and brutal instrument for the rectification of bad behavior, as well as being a dangerous instrument in the hands of the sorts of people who routinely choose to devote their lives to prosecution of crimes: typically narrow-minded and self-righteous, often power-hungry, sadistic, and prejudiced.

To answer my own question, by definition the criminalization of any behavior results in a decrease in human freedom and autonomy. You need to be very sure that whatever you want to criminalize is a sufficient evil that it warrants deprivation of liberty.

rea — Chris realises that. In fact in the 1950’s, as dsquared points out, it was precisely left-wing speech that was banned. Despite the first amendment. You don’t get out of the fact that decisions are going to be made about these issues by having a constitutional right, you just put the decisions in the hands of a small elite.

Sullivan is being ridiculous. Of course hate speech is harmful, and of course the government has a legitimate interest in restricting it. The reason we have such a high bar against speech restrictions in America is because of the First Amendment and the ingrained notion that most Americans have that such an amendment means we are perfectly entitled to express ourselves in any manner we see fit in any forum, public or private (including shouting down the speech of those we disagree with.) In other words, we have a pretty broad notion of the “freedom” of speech. But other countries don’t, and it’s silly to think that speech restrictions can only be the enforcement of some ideological “orthodoxy.” Sullivan, like many, has trouble understanding the difference between the real world and the worst-case scenario.

Harry–thanks for the clarification on the parenthetical, and for gently correcting my misreading of your comment on Sullivan (my children are underfoot this am, with all the advantages and disadvantages that goes along).

As for the differences between hateful epithets and propositional content: the argument Chris has made covers both, doesn’t it? And practically, isn’t the reason we react strongly to the hateful epithets because we believe there is propositional content, and offensive content at that?

Here’s a question for all the die-hards: is there a fundamental human (moral) interest in being able to use racist and sexist speech to express contempt for others? I think not, and I’d like to see the argument that there is.

Yes there is. It’s the right to freedom of speech, the right to be able to argue our own views, no matter how offensive others find them.

I say this because I am an atheist, and hold some views about religion that I am well aware that many others find offensive. Some people are quite happy to include religious groups with racial groups (see Chris Bertram’s comment about “deep ethnic or religious divisions”), I think that if we allow racist or sexist views to be prohibited, the next step is prohbiting views that people find offensive to religion.

Also it is noticable that feminism and the anti-racist movements started and had many political successes in an environment where appallingly racist and sexist statements were common in academia and political discourse.

Now, is there a fundamental human interest in being able to participate in public matters as an equal (at least when one is an equal)?

Yes. Even for racists and sexists. This is why I am opposed to criminalising “hate speech”. For the record, I am female and of mixed race, and I am not an American.

fair enough on the chronology bloix, and Caen’s ethnic roots, it’s the way the reference works that has always baffled me — a reference to eg nudnik or narodnik is a reference to a similar TYPE of word, albeit near-subliminal if Yiddish or Russian aren’t available to you; descriptive of a certain type of person, jokily derogatory — whereas why when yr thinking of a Beat wd you be put in mind (and want to put others in mind) of a Sputnik? Random hardware in space at the moment: aha, do you see? It feels like the category shift is too big for the joke to work.

(I realise this is completely unprovable either way and maybe the “obvious” gag really is the gag we have… also that no one in the world cares a jotnik except me)

The reason we have such a high bar against speech restrictions in America is because of the First Amendment and the ingrained notion that most Americans have that such an amendment means we are perfectly entitled to express ourselves in any manner we see fit in any forum, public or private (including shouting down the speech of those we disagree with.) In other words, we have a pretty broad notion of the “freedom” of speech.

(Emphasis mine.)

I know this is what we Americans claim to believe, Xanthippas. Unfortunately, I think it’s just so much self-serving rhetoric. Exhibit A: The fact that this guy, who attempted to shout down a speaker in a public forum, got a hefty jolt of voltage from the forces of law and order for his trouble…and even in such “lefty” fora as Keith Olbermann’s show, he’s being treated not as a First Amendment martyr, but as a walking punchline.

thomas — my kids are all upstairs, which has the advantage that I’ll pay them full attention later this afternoon!

Here’s what I think about the eptihets/propositional content issue. I think both kinds of speech are in play and that regulations are worth considering, but that the reasons for protecting propositional speech are very powerful indeed, even when it is hateful and harmful. So, despite everything I’ve said in this thread, I’m disposed to support strong protections for propositional speech in most situations. The reasons to protect epithets are much weaker, and the reasons to proscribe them much stronger. CB’s post might have been stronger if he had drawn the distinction and discussed it, but I know he’s well aware of it and may assume that most of us are.

I think the reason we react so strongly to epithets is that they so effectively draw on a set of cultural assumptions about the inferiority/contempt-worthiness of the object of the epithets, and do so in a way that is impossible to combat on the spot by using propositional speech which contradicts it. Of course, as a white male Brit living in the US, there aren’t any effective hateful eptithets in the culture that are usable against me (“limey!” — if someone tried to express contempt for me that way everyone would think they were nuts). But everyone knows that there are effective epithets expressing contempt for black americans, and there are reasons why there are, and people who use those eptihets in that way know what they are doing and why they are doing it. So, I agree that there is propositional content behind eptihets, but I think they are not, actually, propositional speech acts, and I think they are known not to be by those who use them.

I feel like I’m rambling a bit — does this make sense? (and, a different question, what do you think?)

64 — because you presented the quotes as counterevidence to patrick’s comment that

I actually read Bertram’s post and saw that he was arguing that the government has a legitimate interest in eliminating bigotry (a statement with which I agree) and NOT arguing that the government ought to run out and ban hate speech.

Patrick’s reading of Chris is spot on, and your quotes are not counterevidence. I mentioned Brown and the UK only because these kinds of discussion remind me of why I am not an enthusiast for written consitutions or bills of rights with judicial review, but the comment was directed at Chris, not you!

belle – a little internet research shows that Caen himself later said that he was thinking of Sputnik but it’s clear (in his response to a scholarly inquiry) that he knew the Yiddish expression, at least at the time he wrote the note (1975):

Dear Mr. Rex:
Beatnik slipped out of my typewriter one day when I was writing about one or another of the Beat types – Kerouac, Ginsberg et al. – who flourished here at the time. … It was earlyish in 1958 and, correct, shortly after the Sputnic arose. Word association, and I never did understand how, “Beatnik” caught on. The suffix “nik” is, I believe, Yiddish, no?
Happy noodnik
Herbnik

The same article tells a hilarious story about Krushchev berating the poet Andrei Voznesensky for appearing at a meeting in casual dress:

Khrushchev started shouting at him and the minister of police jumped up and said:
“You came to the Kremlin without a white shirt and tie. You are a beatnik!” According to Voznesensky, the minister of police was the only person there who knew what a beatnik was but everybody shouted, “beatnik! Beatnik!”

Does the even tone of this article make it any less grotesque? By your logic you’d defend Eichman’s words but not Hitler’s. Why even try to draw a line if you don’t have to? Why police anger and not ideas? Intellectual conversation as teatime hobby, the Genteel Tradition lives.

The underlying logic of liberal defense of zionism is that liberals have the image of Jews as nice people, and the image of Arabs as something else. It’s social proximity and nothing else. Legislating niceness does nothing, and it helps to avoid the issues. The Negro Problem; The Jewish Problem; What Do Women Want? Why Are They All So Angry? Why Can’t They Be More Polite?
Because people won’t listen unless they’re forced to.

Chris is arguing about the legitimacy of government using hate speech laws in its efforts to eliminate bigotry. That he frames it in terms of individuals not having a right to hate speech does not change this fact and that people see through the framing strategy straight away is something to be happy about not something to deplore.

Attempts to cut through the BS and get to the heart of the issue should not be met with attack.

and protected by threats of the use of force from violence from
non-whites? That would make most of the current pro-immigration
rallies a terrorist threat against the safety and security of American
citizens.

3. Or is this like hate crime laws where only white people are the

ONLY people that can fit into the guidelines as perpetrators?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Find a press release from the ACLU or NLG next time.

Third, if we are trying to implement such a conversational ideal in a society riven by deep ethnic or religious divisions, we’ll need to take seriously the idea that despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens. This isn’t a matter of “the government” policing speech, it is a matter of us regulating our collective conversation.

I appreciate the basic intellectual framework here. I too eschew a Lockean natural rights framework in thinking about political issues, and place a lot of emphasis on the conditions necessary for implementing democratic self-government. This especially applies for me in the economic realm.

But I don’t think sufficient attention has been paid so far in this debate to what seems to me to be the weightiest factor in the defense of free speech.

Defenses on free speech often focus excessively on public goods: e.g., that permitting free expression allows for the introduction of all sorts of novel, challenging and unorthodox ideas into the public sphere, coming from many quarters. These ideas can then be freely debated and evaluated, and contribute to the spread of knowledge and practical wisdom. So, here free speech is cited for its practical, largely social value: its contribution to rationality in public and individual choice.

But I think there is a much more important factor to consider, the one which really lies behind the response that is elicited when people fear someone else is attempting to curtail their liberty of expression.

If one reads the (often clandestine) fictional literature, memoirs, drama, poetry, etc. from writers in totalitarian or near-totalitarian societies, one thing that stands out is simply how unpleasant it is to have one’s speech restricted. It is extremely painful and emotionally crushing to live in circumstances in which one’s speech and writing is routinely watched, scrutinized, penalized, censured, forbade, etc. It leads to paranoia, intellectual and emotional deadening and depression. And this should lead us to reflect that even in freer societies, each and every little restriction on speech is an imposition of at least some degree of pain or discomfort. That doesn’t mean that the imposition of that pain might not be justified by some higher good. That’s what the civilization and the formation of civilized character is all about. But it is important to recognize that it must be offset to be justified. We don’t just have a conflict between two sometimes competing social goods.

People are naturally chattering, blabbering animals. They enjoy saying what’s on their minds. Left alone, words gush from their mouths and pens in torrents. They delight in the exercise of power contained in their speech. They thrill at making their big or little impact on the world of other people by virtue of the noises they emit. They probably just have an innate disposition and need to exercise their cognitive and muscular speech organs. Their mental health depends on it.

People also delight in hearing the speech of others, something that comes through very clearly in – for example – Plato’s dialogues, whose characters seem to regard talking and listening as the most enjoyable things in life. The better the quality of the talk, the more enjoyable it is to listen to it. But it’s all delightful.

So sure, we would like to build a good and just society based on principles of democratic self-government. But the goal of every society, including a self-governing democratic one, is to create a life that its members enjoy living, to the maximal extent possible. People who collectively share a love of free expression, and the happiness free expression brings, might collectively and rationally choose to grant themselves very, very wide scope in saying whatever is on their minds. Life is more fun that way.

This doesn’t mean that allowing that wide scope doesn’t produce its own harms, or is not recognized as producing those harms. But the harms that come from relatively unrestricted speech – and their surely are many very real harms, both public and private – might be judged offset by the sum of sheer delight and joy in unrestrained speaking and writing, listening and reading.

Consider a group of people at a poetry reading.
Even if the particular pieces of poetry have no redeeming higher purpose; even if they are morally and intellectually degenerate; even if they contribute nothing of value to the emergence of wisdom, knowledge or intelligent decision-making; and even if they produced much embarrassment, chagrin and gnashing of teeth in the audience, we can at least say that the people who engaged in that speech had sport in the making of it. The sum total, on any given day, of inane gibberish, hateful insults, cretinous comments and rambling bloviations, might not add up to a social plus. They might even be a social negative. But all that talk represents a very large amount of inherent pleasure that must at least be taken into account.

Propositional speech:
Banning not The Merchant of Venice but only it’s performance?

CB in the post: “Third, if we are trying to implement such a conversational ideal…”

impossible. You can’t “implement” such an idea you can only foster it. Regulations can’t replace people. In the same way the question is not whether or not there should be written constitutions and bills of rights but whether or not debate itself is fostered, encouraged, under whichever system. Constitutions force discussion to be in the form of variations on a given theme. Some would prefer their discussions freeform, I prefer indoctrination from childhood into the rights and obligations of democracy and near absolute freedom of speech in adulthood. But more important than speech is inquiry. It’s not the right to perform the Merchant of Venice that’s important, it’s the right to hear it performed. And if you don’t think there’s a propositional value to the performance of Shakespeare then I don’t know what to say.
And am I the only one here is is annoyed by the assumption that only libertarians would be bothered by these arguments?

That’s right – indoctrination is the solution. And if it doesn’t work and you have to introduce coercion, start turning screws on a growing number of deviants – then something’s probably wrong with you doctrine or the way you promote it.

“Well sort of. The Americans have a long tradition of trying to discuss these things using the language of an 18th-century document. Given the difficulties of shoehorning a lot of real-world problems into that frame, that gives them a long history of acrobatic hermeneutics somewhere in the vague area of free speech. Some of it is even relevant. The trouble is that many Americans (at least the ones who comment on blogs!) can’t tell the difference between discussing the free speech and discussing the application of their constitution.”

Actually, I’d suggest as modestly as I could, that you don’t seem to know much about the American tradition. Pray tell, what language “of the 18th Century” are the Americans using? Please cite a Supreme Court ruling of the past 40 or so years.

So I don’t think the trouble is with the Americans; more with the Europeans who have a rudimentary knowledge of things American (but can’t admit it and certainly can’t admit that they might learn something from those barbarians on the other side of the pond).

Chris Bertram:…we’ll need to take seriously the idea that despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens.

Harry B:[limitation on speech] …is a decision that can be seriously debated by elected officials and voters, …

Chris Bertram’s scenario could only exist if the opposition to the despised or stigmatized groups was widespread so that the groups were truly marginalized. If that were the case, leaving decisions about the limitations of the discourse regarding those groups to those engaged in the discourse would be pointless at best. In other words, any speech code that could be produced by a democratic process would be unnecessary and any speech code that would be necessary to achieve Chris Bertram’s goal could not be the product of a democratic process.

The reason certain rights were put into the Constitution was not to leave the decisions to an elite, but to protect minorities from a potentially oppressive majority in a democratic society. The US Supreme Court may not be perfect as its track record will attest, but the principals the system is based upon are better thought out than Chris Bertram’s or yours.

Democracy is the culture of language in use (that’s my line too Prof B.) and indoctrination in democracy means indoctrination in language itself: in the responsibility of citizens to have opinions and be able to articulate them in their own words; to know history and the arguments over the events of the past. What opinions they end up having as adults becomes irrelevant. And as far as foundational documents are concerned I’d be happy enough if we replaced the Constitution or the Bible with the complete works of Shakespeare and the affirmation of communication as social collective act. I’ve had enough of the pseudo-science of the value free. All knowledge is built on foundation. I’d rather have that foundation be explicitly fictional and formal than on an unacknowledged and equally fictitious telos. To the secular humanists of the Renaissance, the “Enlightenment” is anti-humanist.
In modern rationalism it still is.

Liberals have the habit of wanting to speak for others and the difference between concern and pity is ignored. Concern can never be abstract. It can not exist as a policy, outside the act of it. There can be no concern without proximity, so the question becomes (or should become) how to increase proximity. Having done that concern will take care of itself.
This is where ideas fail, where political philosophy fails while saying that it was never trying to suceed anyway, while making sure that the rabble stay away.
Proximity

The right frame, in my view, is to think of the state as “we, the people” and to ask what conditions need to be in place for the people, and for each citizen, to play their role in effective self-government.

This is a ludicrously infantile view of government, akin to the five year-old who writes the President and asks him to cure cancer.

#81, that’s way too difficult for me to understand, I’m just an IT guy.

I was just saying that if, say, you’ve created a workers’ paradise, but a lot of workers don’t enjoy it and you have to force them to stay in it – then something’s probably wrong with your workers’ paradise idea or its implementation. Same with this liberal multiculturalist paradise: if racial-ethnic-sexist hate-speech is a serious problem there – to the point you’re thinking about criminalizing it – well, it’s definitely a symptom; the doctrine/implementation needs to be re-examined.

(Quick point of fact re: #82: Despite our admitted endless contempt for the ignorant rabble, the purpose of Public Reason is not actually global domination, the stamping out of democracy, or the imposition of Liberal-Fascist-Zionist speech codes, fun as that might be, but rather merely the facilitation of communication between members of a reasonably small professional sub-discipline.)

#84 – Same with this liberal multiculturalist paradise: if racial-ethnic-sexist hate-speech is a serious problem there – to the point you’re thinking about criminalizing it – well, it’s definitely a symptom; the doctrine/implementation needs to be re-examined.

So if theft, or murder, is a serious problem to the extent that a society decides to criminalise it (as most have), that means there is something basically wrong with that particular model of society?

not only is the khrushchev story funny, it sort of explains everything that has always puzzled me: ok “beatnik” was indeed inspired by “sputnik”, in a sort of meaningless not-quite-workable-joke way, but it caught on — to caen’s own puzzlement — cz it’s such a great word to say, even if you have no idea what its origins are!

oddly enough it also hints at a dimension of word-harm not much touched on so far — which is that intense and deliberately maddening repetition even of not-especially hostile words is a well-recognised (and devastatingly effective) element in playground bullying

True, but it’s a surprisingly popular line of argument with free speech absolutists. It’s weirdly neo-freudian – unless everything is put out in the open and cleared through rational discourse, there is something hypocritical and sick about trying to contain the skeletons in the closet.

Somebody recently went so far as to tell me, while I was defending German legislation against neo-nazi speech, that it would be better if the jews still living there left until the country got rid of its neo-nazi problem, which could be achieved gradually by removing all restrictions on speech. I’d rather have jews living in Germany and neo-nazis getting locked up.

It’s not the proponents of multi-cultural society that are living in la-la land, most of them are quite aware of the problems the implementation of their concept face. It’s free speech absolutists who ignore the fact that almost every society has an underbelly of hatred which won’t go away anytime soon and can’t simply be combated with rational discourse but has to be restrained by other means.

It’s a crazy world when abb1 and Seth Edenbaum are making way more sense than Chris and Harry.

Just wanted to get counted among the free speech extremists.

And as far as this being just an American idiosyncrasy, whatever happened to “I may not agree with what you say…”? Free speech extremism has a long and fine tradition and American free speech extremists are only part of that tradition. At least I’m sure we have a lot of French on our side (past and present). Also the folks who present this as US weirdness vs. rest of the world are misrepresentin’ themselves as speaking for groups which they do not necessarily speak for. I’m sure a lot of non-CT Britons disagree with CT Britons and agree with those weird Americans (who are themselves in disagreement with many of their fellow citizens. It’s not as if there aren’t similar proposals in US once in awhile).

But nobody has made a proposal, notsneaky. Neither CB nor I have claimed that the balance of reasons favour prohibiting hate speech. We have both claimed that hate speech, like other forms of speech, are matters about which governments should make decisions based on the balance of reasons. Some of our opponents seem to be saying that they think that the balance of reasons always, everywhere, favour license. I guess that might be true, but I want to be able to think it out in every case. Other opponents seem to want to rule out the possibility that there are reasons to prohibit. We disagree; there is a clear reason to prohibit. Another debate which I think I rather unfairly introduced, but in response to seth not seeming to realise that this is an issue, is who gets to decide. Both CB and I tend to be distrustful of elite judges having total authority about important public matters. I’m willing to believe that American democratic institutions are sufficiently badly designed that things go better if the judges get these decisions. But even that is not certain; their complete refusal, consistent with the absolutist doctrine defended by many here, to cede control of the spaces of deliberation to the rich, makes me distrustful. Sure, I know there are Brits who are free speech absolutists and support judicial review, bills of rights, etc, but there aren’t many outside of the political elite, and I regard the rise of this movement as a regrettable development, especially because most of those people are roughly on the side of the angels concerning most matters.

“Free speech absolutists” wouldn’t bother me so much. What bothers me is people who defend the First Amendment of the US constitution as if it is some kind of holy writ. It enshrines a very limited conception of freedom of speech, basically freedom from government interference with speech, which is perfectly consistent with any number of disgraceful hypothetical scenarios–private media controlled by ideologues who refuse a platform to reasonable opposing views, severe marginalisation of members of disfavoured ethnicities, genders or classes within the public sphere, a complacent and conformist populace which shouts down reasonable challenges to its received opinions, widespread intimidation of advocates of a particular view by legal means, etc (each of which may or may not be all that close to the situation in present day America)–in which free speech is all but non-existent in anything but a formal sense. I can see why such a conception might be appealing to “libertarians” but I do not understand why it would be considered the first and last word on “free speech” for anyone who genuinely cares about democracy, equality or freedom.

It’s worth pointing out that the interpretation of the constitution that both the free-speech absolutists and their opponents are using is only forty-some years old; I’m not an expert in the history, but it seems to me that hate-speech regulation would have been viable under incitement and group-libel theories that were settled law before the 1960s.

Neither CB nor I have claimed that the balance of reasons favour prohibiting hate speech. We have both claimed that hate speech, like other forms of speech, are matters about which governments should make decisions based on the balance of reasons.

And that’s exactly the point on which you are wrong. In a society where persuasion through speach is the legitimate method of changing the government, how can the government be entrusted with the power to make “decisions based on the balance of reasons” as to what speach is licit?

Erm, right. I’m guessing that noone here would defend the American Nazi Party’s right to burn down the ACLU headquarters. So they accept that some forms of self-expression are rightly forbidden, perhaps acts which directly violate the rights of others. The question is whether these rights-based limits on self-expression are exhaustive, or whether further restrictions ought to be made.

But no one has responded to my points, which had to do with the underlying logic of the question, not whichever answer you end up with. Separating propositional and “non-propositional” speech is akin to separating political and non-political speech (and I think Bork or someone of his ilk has made that argument). And what about the difference between the reading and performing of The Merchant of Venice? How much credence are we going to give sensibilities of the professionally thin-skinned, and how long till their skin gets to be as thin as parchment? How is it that Tyler Cowen’s article on New Orleans does not bring out howls of disgust? I really have no idea, other than that people who know him think he’s a nice guy. Polite or not, he’s an idiot and an asshole

Since so many homes were destroyed, the natural inclination is to build safer or perhaps impregnable structures. But that is the wrong response. No one should or will rebuild or insure expensive homes on vulnerable ground, such as the devastated Ninth Ward. And it is impossible to make homes perfectly safe against every conceivable act of nature.
Instead, the city should help create cheap housing by reducing legal restrictions on building quality, building safety, and required insurance. This means the Ninth Ward need not remain empty. Once the current ruined structures are razed, governmental authorities should make it possible for entrepreneurs to put up less-expensive buildings. Many of these will be serviceable, but not all will be pretty. We could call them structures with expected lives of less than 50 years. Or we could call them shacks.

…To be sure, the shantytowns could bring socioeconomic costs. Yet crime, lack of safety, and racial tension were all features of New Orleans ex ante. The city has long thrived as more dangerous than average, more multicultural than average, and more precarious than average for the United States. And people who decide the cheap housing isn’t safe enough will be free to look elsewhere—or remain in Utah with their insurance checks.
Shantytowns might well be more creative than a dead city core. Some of the best Brazilian music came from the favelas of Salvador and Rio. The slums of Kingston, Jamaica, bred reggae. New Orleans experienced its greatest cultural blossoming in the early 20th century, when it was full of shanties. Low rents make it possible to live on a shoestring, while the population density blends cultural influences. Cheap real estate could make the city a desirable place for struggling artists to live. The cultural heyday of New Orleans lies in the past. Katrina rebuilding gives the city a chance to become an innovator once again.

And If you’ve read Eichmann in Jerusalem you’d think that he should certainly pass the civility test, even if Mein Kampf, or at least Hitler’s public speeches do not.
By limiting speech you limit the ability of the public to hear, be aware and understand; freedom of speech is much less important than the freedom to listen. And what about the fact of pity and condescension, the need of the strong to protect those they consider weak? Democracy assumes equality. What does that response assume?

Hate speech that doesn’t reach the point of incitement is a category that has more to do with the self-regard of well meaning liberals than the self-representation of outsiders of minorities. It intends to help more than it actually does.

Most people may be children, but for the purposes of politics it makes sense to treat them as adults. As in everything else, the logic of the lowest common denominator- of low expectations- is a self-fulfilling prophesy. What’s next, “The Yellow Wallpaper” as a model for the treatment of post partum depression?

All of this should be obvious. The fact that it isn’t to so many is just sad.

Harry, a belated response: I’m still skeptical of policing the line between epithets and other speech, between speech-as-abuse and propositional speech, but that’s a practical problem. If the distinction is granted, then it seems to me you’re right, and that speech-as-abuse is less valuable (certainly less socially valuable), and more harmful, so the case for regulation is stronger. Your discussion of epithets/propositional speech is interesting (the line of discussion may be old hat to you and CB, but it isn’t to all of us), and I’m still turning it over.

As for what I think: I think it’s a failure of imagination to exclude the hateful speaker’s POV, not on the subject of his bigotry, but on the value of his speech and the costs to him of regulation. Those shouldn’t be ignored, even if they are outweighed (and ignoring them guarantees that they’ll never be weighed at all).

To point out something obvious, nothing that Chris Bertram writes here in any way undermines any of Andrew Sullivan’s points. The restrictions that Bertram seems to think are essential for people to enjoy “effective liberty” look a lot like tyranny to Sullivan.

Anyway, I find it hard to take Bertram seriously in these posts, even purely at the level of ideas. Part of the problem is that when you argue something is necessary for freedom, equality, and liberty, it becomes an overriding consideration. If freedom, equality, and “effective liberty” requires giving out a lifetime of free massage to every citizen ( you can’t participate in the public sphere effectively if your back hurts, can you now?)- well, we can’t really quibble about money in matters like this, can we?

More broadly, any act of financial redistribution; and virtually any restriction on self-organization (for example, forcing universities to admit all their applicants) can be justified on grounds of freedom, equality, and maximization of “effective liberty.” Am I to assume that Bertram favors all these natural implications? Unless the limitations of this argument are carefully spelled out, and shown how they follow from the assumptions, it will not be very convincing.

There have been attempts to ban, or limit access to Huckleberry Finn for the use of the word “nigger,” and there are other examples as well. [and I think this is the first bit of empiricism to hit this thread. And then there’s the Butler decision] Since the record shows that unimaginative minds are often be offended by any number of things, and given how argument works by way of precedent, and how time can alter meanings we have to wonder at unintended consequences.

It’s always amused me that liberals who have no patience for theories of original intent defend propositions assuming that they will only lead where they want it to go. Once the state can define the meaning of a word, we get into problems.

I understand the frustration with libertarianesque portrayals of government as “The Other,” but the fact of the matter is that if our conversation is unfortunately dominated by a pack of bigots, shutting the bigots down requires an act of force, not simply polite agreement between parties interested in maintaining civil conversation. Now it’s not the case that force is off-limits for the government (heh indeed), but this is inherently political, not just a matter of setting ground rules. Maybe one day we will all be sufficiently indoctrinated to believe that certain forms of speech are off-limits (no sarcasm intended) in which case these hypothetical restrictions on speech will indeed just be a matter of setting ground rules — and of course will also be largely unnecessary.

In other words, Seth Edenbaum and abb1 are talking lots of sense. I concur with notsneaky in 89.

Bottom line: “Effective liberty” is nothing but a rhetorical mechanism to allow one to attack liberty while pretending to defend it. I’ve never seen anybody use the term when they weren’t arguing for restrictions on liberty.

is there a fundamental human (moral) interest in being able to use racist and sexist speech to express contempt for others?

I love smuggling that parenthetical “moral” in there. Really telling. Human interests are about fulfilling some academic’s abstract notions of “morality”. They are the interests we have by virtue of being the sort of human animals we are. Morality is only a small part of that. People who want to define the fundamental human interest as “being moral” are authoritarians.

mq — I’m inclined to engels’s response to that. I included the term moral to make it clear I meant moral interests rather than preferences. Your understanding of “interests” is roughly my understanding of “moral interests”. Reread with that in mind.

The assumption of bad faith on my part pisses me off, frankly. I understand that different people come to this discussion with different assumptions about what wrds and phrases mean, and try to be as transparent as possible, and anyone who reads my comments should either be able to see that, or should have the decency to assume it unless there’s evidence to the contrary.

thomas — I agree with your second para above, and regret having committed the fault you point out. Thanks. Funnily enough, Chris and I have never discussed the epithet/proposition issues. Believe it or not, I am always incredibly suspicious of actual restrictions (I was opposed to the speech code my own University had for some years, and whenever practical proposals come up I have been opposed to them. But on the balance of reasons, not on principle!) I agree the practical problems are difficult to solve, and maybe impossible, but I think that epithet regulation is the most promising avenue.

Even if we leave aside the issue of hate speech, which appears to be a rather emotive issue for many, I’d be interested to know what people here think about government regulation of advertising. For example, should government bans or regulations concerning tobacco advertisements be considered in the light of a strong presumption in favour of protecting the free speech rights of the tobacco companies? Tobacco adverts do not violate anyone’s rights (in the minimal sense) it seems. I think most reasonable people* would concede that they do in fact cause widespread and serious harms but that this is indirect.

(* ie. not Brett Bellmore and the other tiresome rightwing maroons who appear to have come here from Sullivan’s blog)

Also, for the record, I do not have a dog in the fight about hate speech regulation. It’s actually not something I have thought about very much (quite unlike all the other topics on which I have left prolific and intemperate blog comments, of course). Where I am in agreement with Harry and Chris is on the underlying principles. This post is quite right to point out that (a) restrictions on freedom of expression might be justified to protect freedom of expression and (b) the US First Amendment really ought not to be the touchstone for left/liberal discussions of free speech issues and the tendency of many liberals to treat it as such has been rather unfortunate imo.

“I’d be interested to know what people here think about government regulation of advertising. “

I, for one, think the whole distinction between commercial and non-commercial speech is totally illegitimate. There’s no constitutional basis for divvying up speech into different categories, and applying different standards to each for when Congress may enact exactly what the 1st amendment declares it shall not.

Brett – (1) I was not asking for more do-it-yourself First Amendment jurisprudence, but about what regulation there ought to be.
(2) I wasn’t really asking you anyway, since almost without exception, all the comments of yours that I have seen on this blog have consisted of little more than silly and hysterical rhetoric in defence of an ideological view of the world which I find to be completely absurd.

“is there a fundamental human (moral) interest in being able to use racist and sexist speech to express contempt for others?”

As usual, you’re interested in ideas, not people; more interested in the idea of civility than the best way to achieve it. I haven’t accused you of bad faith, only of self-absorption.

You’re making the argument for dividing political from nonpolitical speech. You really want to do that? What’s the meaning of nigger in Huckleberry Finn? Of self-hating jewishness in Portnoy’s Complaint? of sex in Lolita?
I think it was Kenneth Koch who argued that poetry is language crafted literally into a higher form. To which my response before thinking was to mumble Eliot’s cut and pasted phrases: “hurry up please, it’s time.” Nothing special about that except context. And of course he plagiarized not only from daily life but also from crap: “O O O O that Shakespeherian Rag-It’s so elegant So intelligent.”
Engels: ” [I was] just illustrating the difference between propositional and expressive utterances.”

You can’t be a philosopher if you’re not sure of the meaning of words. You can’t be a writer if you are.

This is getting down to the failures of American philosophical liberalism and its wishful relation to intentionality. If Naturalist Epistemology means never having to look in the mirror, it’s a recipe for ghettoization and irrelevance.
As to commercial and non-commercial speech, I’d have to run down all the possible reinterpretations of a rule and see how the meanings could be bent or expanded over time. At some point however, and this is what academic philosophical liberalism can not not understand, a society is not based on rules but values. Rules don’t allow for contradiction, values are dynamic and flexible, even paradixical. They’re made for elisions. If my multimillionaire stockbroker finds billionaires a little distasteful it’s because he’s been raised to feel that way. It’s not an abstract or intellectual decision, it’s simply a fact. He’s been socialized, as a social democrat.

I’m not interested in creating an enclosed non-contradictory formal logic; I’m only interested in a world with fewer Brett Bellmores (and Tyler Cowens). We’ll never get to the second without giving up on hope for the first.

You’re making the argument for dividing political from nonpolitical speech … it can’t be done.

Er, yes, it can actually. The European Court of Human Rights in Strasbourg applies Article 10 of the European Convention on Human Rights by distinguishing between several different types of speech and according them varying degrees of protection, from political speech (highly protected) to “valueless” speech (nominally protected).

Also, the US Supreme Court does in fact accord less protection to commercial speech than to political speech, I believe, whatever US libertarians might want.

seth — it was mq who implicitly accused me of bad faith, not you. I haven’t bothered to count or categorise the insults you’ve directed my way, I’ve only tried not to respond in kind. I know you disapprove of political philosophy done the way most of us do it these days. I don’t, frankly, think you know a lot about it, or have much of a sense of what the community of political philosophers think its role is and its limits are. I sometimes simply don’t understand what you are claiming or arguing –for example the long passage that takes up most of #117 is opaque to me (even though I like Eliot too) — and when you add or include insults, whether explicit or implied, it makes me less inclined to try and figure it out than I otherwise might be.
On the substantive issue of distinguishing eptithets from propositions (I didn’t mak any claim aboout political/nonpolitical, though I’m retty confident about that distinction too) — can’t you tell the difference between the use of ‘nigger’ in Huck Finn and its use as a racist insult in a street encounter or at a party? Can’t a jury? Maybe I don’t know enough stupid people.

“I’m not interested in creating an enclosed non-contradictory formal logic; I’m only interested in a world with fewer Brett Bellmores (and Tyler Cowens). We’ll never get to the second without giving up on hope for the first.”

This I know: While the self-consistent may or may not be true, the true is always going to be self-consistent. Enjoy your guarantee of being wrong, Seth; You’ve just admitted you’d rather be rid of me than be right.

Yes, Seth, and married to a school librarian too, amazing really, isn’t it, that I’m so ignorant? What can I have been thinking? It must be very rewarding to be catching people out so easily. And your response to Brett, too. So clever, I’m sure he’s reeling, and probably rethinking his commitment to the law of excluded middle.

Then why did you ask the damn question? I said I was surprised.
I asked questions you haven’t even tried to answer. You haven’t thought about this enough, obviously, otherwise you wouldn’t resort to such half-assed bullshit responses.

And the law of non-contradiction does not apply to human behavior. That’s what we’re talking about right? This is not a fucking academic subject. And yes “truth” is not something that interests me. Facts are mundane. They develop a glow if we search for them but that glow is caused by our desire, not by them. Facts are plain as dirt. And if you think I’m the one with an empty fixation you should read this thread again.

You desire a neatness that can not exist, and the search for it, if our goal is to make our man made world more livable, is deeply counterproductive. The point was made about Rawls recently.
Do us all a favor and stay in the academy. Don’t ever leave. Talk to intelligent people. Leave the rest of us to deal with the idiots.

While the self-consistent may or may not be true, the true is always going to be self-consistent.

This is really not “true” — everyone holds values that are in conflict with one another, and if people actually relied on the principles of axiomatic logic to draw conclusions, they would simply realize that they are contradictory systems and that everything goes.

Bellmore, your worldview essentially seems to be that of a white male oppressed by hypocritical liberals and wealthy conservatives; discussion of any political issue seems to either contribute to your sense of oppression (liberals are banning me!) or to your hopes for righteous comeuppance (liberals will lose elections because they neglected me!) or more likely both.

seth, no, I haven’t answered all your questions. Some of them, as I say, I don’t understand, others I can’t see the relevance of. I have other things to do so take up what seem to me the most relevant matters. You, in fact, ignore any point that seems to count against you. You are also sufficiently rude that I don’t feel any obligation to you in this discussion — only to others who might be following it.

As to your point about ideas etc — these are, in fact, ideas that we are discussing, and they are ideas with practical consequences. If you don’t care about getting things right, why argue? As I pointed out earlier, someone makes these decisions, and you seem to prefer that they be made by an appointed elite than through public deliberation. All things considered, I do not think there is a case for saying that the UK, without a bill of rights or a Supreme Court to implement it, is any less just or free than the US. Evidence that some more-or-less democratic policies can muddle through fine.

I don’t know you, or you me, except through this forum. You freely make assumptions about my interests and capabilities, which are largely false, simply ungenerous. Do you behave this way to people in person? If not, quit doing it online. If so, I’m sorry for you.

“This is really not “true”—everyone holds values that are in conflict with one another, and if people actually relied on the principles of axiomatic logic to draw conclusions, they would simply realize that they are contradictory systems and that everything goes.”

And THAT is exactly the problem with rejecting non-contradiction. A person may like to think that they’ve got some kind of moral/ethical principles, but if those principles are self-contradictory, they can be manipulated to justify ANYTHING. Just like, in math, if you embrace division by zero, you can ‘prove’ that 1=2.

Really, the anti-intellectualism you’re displaying is remarkable: The principle of non-contradiction is the very heart of reason, and you’re rejecting it.

I’m not terribly impressed with your efforts to substitute psycho-analysis for argument, either.

That’s great Brett — you still haven’t established that anyone’s principles are logically consistent, or can even be fully expressed as logical propositions. I do hate myself some intellectualism though.

Does Brett support freedom or not? Let’s see, if the government restricts the rights of individuals to own guns, then they are trespassing on the rights of citizens to protect themselves. But if the state imposes restrictions on when people can move from one part of the world to another, then it is protecting citizens from the harmful externalities. There is no tension here — Brett reached these conclusions by writing down his first principles in mathematical form and using the rules of elementary logic to reach an inexorable conclusion. Only anti-intellectuals would think otherwise.

hb, you’re talking about ideas, I’m talking about data. You’re talking philosophy I’m talking history. You’re talking about how people should behave, I’m talking about how they have and do.

“All things considered, I do not think there is a case for saying that the UK, without a bill of rights or a Supreme Court to implement it, is any less just or free than the US.”

I’ve been called a free speech absolutist, that doesn’t leave much room for a court to intervene. But if we were both in England we’d be having the same argument. I haven’t mentioned the constitution once I think. I’ve talked only about the principle of free speech.

I also said that it’s not so much judicial review itself as an actively engaged populace and a culture of debate that are of primary importance. I’m all in favor of making voting mandatory, but at this point I don’t think getting rid of the constitution is such a good idea. Nathan Newman argues that the reliance on judicial review by the left is a mistake. I agree. It became something of a fixation: the moral superiority and certainty of the elite. I’m not sure it was a mistake 40 years ago, but at this point the intellectuals are more conservative than the majority, and the democratic base is more populist than those who claim to be their betters. Academic discussion is has become concerned solely with ideas. While the statehouses are slowly filling up with democrats, Brian Leiter pals around with Richard Posner and Henry Farrell chats economic eugenics with Tyler Cowen. It’s a bit like Turkey where the modernists have become the conservatives. And I say that as a secularist. But Richard Dawkins model of secularism is the Turkish military.

All things considered, I do not think there is a case for saying that the UK, without a bill of rights or a Supreme Court to implement it, is any less just or free than the US.

I agree that the UK is every bit as free as the US (that speech here, in particular, is in general, as free as speech in the US, if not more so); but let’s not pretend we lack a ‘bill of rights’ and judicial review.

no jayann, I agree, but we did for a long time (I was talking archaicly, and should have used ‘was’ not ‘is’, but… shorthand for something). And there is no equivalent to the first amendment, but despite the blasphemy law and other restrictions, I don’t think even expression is less free in the UK than the US (but I couldn’t provide an untontroversial metric of ‘freedom of speech’ with which to test that).

I don’t know if they claim to be worldly-wise, certainly not aways. In this case, at least, it sounds like they pose a largely theoretical question: does a social-democratic government have a legitimate interest in protecting groups against so-called ‘hate-speech’? And they think it does. It’s like an exercise in rabbinic logic.

Probably no one is reading this any more, but in response to Harry B’s comment at 109: I didn’t mean to accuse you of bad faith, in the sense that I think you’re sincerely trying to make your true beliefs clear. However, I don’t understand your response, or the distinction you are making between moral interests and preferences. My comment was precisely that we have an interest in being free to pursue our preferences, whether these preferences are moral, amoral, or even immoral. Sometimes the freedom to pursue immoral preferences must be restricted, but this is still a restriction on freedom and needs to be done carefully. It is an authoritarian view to want to restrict the interest in liberty only to a freedom to pursue interests the arbiters of morality define as “moral”. Such people also tend to be eager to expand the definition of immorality — for example, I don’t think *expressing* racist or sexist beliefs is necessarily immoral, although harming others based on racist or sexist beliefs often is.

Again, see Dan Kervick’s excellent post at 75 for a discussion of how central the freedom of expression is, even just as a preference or desire. Better, I would urge you to look at Ellen Willis’ essay in response to Catherine MacKinnon, “Freedom, Power, and Speech”, which is collected in Willis’ book “Don’t Think, Smile”, and was also I think published elsewhere as part of the feminist debates on pornography. It more or less devastates a lot of the arguments made here.

the US First Amendment really ought not to be the touchstone for left/liberal discussions

The more I read this thread, the more respect I get for the First Amendment and the more central it seems to me.

” It’s like an exercise in rabbinic logic.”
To them maybe, and to you, but to others it brings out a (moral and ethical) requirment to examine the record:

What have been the effects of similar attempts and what have been their effects as precedent? How have the arguments been expanded over time? Not what “might be” but what “have been” the unintended consequences?

It’s like listening to an economist argue that if the data doesn’t fit the theory then the data is wrong. “It must be!”
And this is how to make policy?

I argued for freedom of speech and the response was a lecture on judicial review, as if I was arguing for the power of judges over the power of the people, or from the first amendment and not the principle behind it! I was arguing against the power of any one over any other. b and b are the self-righteous moralists. They’re willing to assume that the people are the state, and to defend the tyranny of the majority (or is it the tyranny of the “just?”) They’re assuming that eveyone will look to the original intent. And they can’t even acknowledge the irony.
Their rationalism and yours (and brett’s) all have too much in common.

“And THAT is exactly the problem with rejecting non-contradiction. A person may like to think that they’ve got some kind of moral/ethical principles, but if those principles are self-contradictory, they can be manipulated to justify ANYTHING.”

Brett, people who are entirely consistent in their lives and action exist only in fiction. think of Socrates or Christ. You’ve made enough arguments here and at Balkinization based on little more than paranoia and bile that no one has much reason to think of you as rational. And now you argue for the brittlest definition of logic. Believe me you’re not alone.
I’ll use the same question I asked last time this came up:
Are Jews in American culture white or not white [A or Not A]?
The answer of course is that it depends on context.

as if I was arguing for the power of judges over the power of the people, or from the first amendment and not the principle behind it!

But Seth, the point that some people have been trying to make to you is that “free speech” is not “the principle behind” The First Amendment. The principle is roughly freedom from government interference with speech, which is a rather different thing. And if the insults which you have been flinging at people have been in the cause of some alternative “principle of free speech”, it might be helpful if you were to tell us what it is…

Again, see Dan Kervick’s excellent post at 75 for a discussion of how central the freedom of expression is, even just as a preference or desire.

No, there’s really no need to refer us all again to the same post you have already gushed over with sufficient intensity above. Incidentally, did you realise that the original argument was for the possibility of curtailing free speech for the sake of free speech. Arguments about the “centrality” of free speech would seem to be completely irrelevant to that.

Such people also tend to be eager to expand the definition of immorality

This is just ad hominem…

It is an authoritarian view to want to restrict the interest in liberty only to a freedom to pursue interests the arbiters of morality define as “moral”.

This is a straw man…

Ellen Willis’ essay … more or less devastates a lot of the arguments made here.

This is essentially an argument from authority…

The more I read this thread, the more respect I get for the First Amendment and the more central it seems to me.

“the US First Amendment really ought not to be the touchstone for left/liberal discussions of free speech issues and the tendency of many liberals to treat it as such has been rather unfortunate imo.”

and

“The Americans have a long tradition of trying to discuss these things using the language of an 18th-century document. Given the difficulties of shoehorning a lot of real-world problems into that frame, that gives them a long history of acrobatic hermeneutics somewhere in the vague area of free speech. Some of it is even relevant. The trouble is that many Americans (at least the ones who comment on blogs!) can’t tell the difference between discussing the free speech and discussing the application of their constitution.”

The more substantive free speech points have been well covered, (and I’m agreeing with abb1, yikes!), but this type of point confused me until I got near the end.

You can’t really throw away the numerous, in-depth, intellectual discussions that can be found in US discussions over the past 100 years by waving the “18th century document” card. I mean of course you can, Chris clearly just did, but it isn’t a particularly good dismissal because there isn’t anything particularly “18th century” about the discussions. It is true that not all countries in the world have a document that says “X shall make no law” and it is true that having a document that says that doesn’t magically make it so. But that has very little to do with it.

If you think that free speech is a very fundamental right, the 1st amendment expression of that right is comprehensible. If you don’t think it is much of human right, of course you don’t like the 1st amendment expression of it. But that has nothing whatsoever to do with 18th century language. You’re making technical objections to the form, when you really object to the content.

The numerous US-based discussions of free speech can in fact be illuminating, (I was going to say ‘despite’) BECAUSE of the background of taking the right fairly seriously.

If your response to the largest number of very deep looks at the practical and philosophical problems and virtues of free speech is “that is just America” because it comes with a background of the 1st amendment, you don’t seem to be taking the intellectual question very seriously.

The key problem with restrictions on speech content is that the people choosing between ‘good’ speech and ‘bad’ are always going to be the people in power. The American response to that is that speech is an important enough right (no matter how you label the rights, be they ‘human rights’ or otherwise) that we sharply circumscribe the legitimate authority of the government when it comes to policing speech.

There isn’t an appeal to an 18th century document in the above paragraph.

“But Seth, the point that some people have been trying to make to you is that “free speech” is not “the principle behind” The First Amendment. The principle is roughly freedom from government interference with speech, which is a rather different thing.”

None of the ‘free speech’ discussion turns on this distinction. This is a really the positive-rights/negative-rights discussion and it can apply to absolutely any discussion about ‘rights’.

“The principle is roughly freedom from government interference with speech, which is a rather different thing.”
You’re quibbling. No one has argued for absolute “free” speech. I even called it secondary to freedom of inquiry: not freedom to speak but to listen. And for the 3rd[?] time, there’s the problem of the easy and lazy equation of the people with the state, as if were no (dark) history of that to examine.
” ‘Such people also tend to be eager to expand the definition of immorality’
This is just ad hominem…”
No, that’s a reference to the well known historical record.
“This is a straw man…”
No again, for the same reason.
” ‘Ellen Willis’ essay …’
This is essentially an argument from authority”
No, it’s an invitation to read Ellen Willis.

I linked to an article about the Butler decision. mq brought up McKinnon. I mentioned attacks on Huck Finn. There’s data on all this everywhere. Why do you insist on thinking that history is irrelevant to the discussion of rights and obligations? That’s the question I have for you and the others:

Why do you insist on thinking that history is irrelevant?

I’ll repeat that I think it’s because you’re more interested in preserving your own tidy logic and your own sense of moral seriousness than in dealing with the complexity of a world shared with others. You’ll call that an insult and I’ll say I have history on my side.

I’m not a libertarian, Engels, I’m a plain old liberal. One of the reasons I’m not a libertarian is that I believe individualism is something of a myth, although a valuable one. In fact, we’re social to the core. But genuine freedom of speech is fundamental to the kind of sociability I value. State interference with it is threatening in a way that limited state interference with large-scale corporations is not. That’s why I find myself agreeing with the libertarians on this thread.

Brett is right that the language of positive liberty is dangerous, since it allows you to claim it is necessary to negate a liberty in order to preserve that liberty. I think the meat of the positive liberty argument — the need for some material resources in order to participate in speech communities — is mostly attainable through moderate, predictable, and limited state redistribution of material resources, without limitation of the speech rights of others. Like spectrum or TV advertising time for political parties. Perhaps I’m wrong, but that’s my view.

Brett is right that the language of positive liberty is dangerous, since it allows you to claim it is necessary to negate a liberty in order to preserve that liberty.

You are “allowed” to do that anyway and it’s not hard to think of examples.

None of the ‘free speech’ discussion turns on this distinction.

Er, what? I’m not really sure what you mean but I’ll restate the point. You can’t defend a relatively specific First Amendment conception of what “free speech” amounts to, as various people have been doing here* as against the poster’s alternative conception, and when challenged retort that you are standing up for “the principle” of free speech. The disagreement arises partly from the fact that there are differing understandings of what free speech means and the First Amendment is only one of them; and one which I personally do not think exhausts our moral intuitions on the subject, even if as a matter of policy it has pragmatic considerations in its favour.

(* see eg. Seth’s defence above of the impossibility of drawing a principled distinction between political and other forms of speech–based, incidentally, on the misconception that it is “akin” to distinguishing between propositional and non-propositional speech–which is essentially an idiosyncrasy of American First Amendment jurisprudence)

Why do you insist on thinking that history is irrelevant?

Seth, you’ve been acting like a complete dick throughout this discussion. Your last post foists so many silly views onto me which I do not hold that I don’t really know where to begin. I don’t equate “the people with the state”. I believe that history informs the discussion of moral questions. (Incidentally, the first injection of historical facts into this discussion came from Matt on the last thread, who pointed out that pace certain commenters, hate speech laws were introduced in Germany and Austria post-1945 and that this did not lead to the sky falling in and was arguably been effective.) If I say hand-on-heart that even though neither I nor my parents have been anywhere near New York or Berkeley recently I am a Man of Letters, like yourself, am capable of regurgitating chunks of Lionel Trilling and Philip Roth on demand and am reasonably well acquainted with the history of the 20th century and to a certain extent that of the US, would you then please try to stop coming off as such a snob?

Seth, I agree that rationalist fundamentalism is dangerous just like any other kind of fundamentalism, but I don’t think Harry Brighouse is exactly in a position to start expunging words from the language; one can play violent videogames without becoming a murderer. I don’t see how this level of drama is warranted. Things have a tendency to balance out.

Abb. none of my questions were answered.
I am opposed to hate speech legislation for reasons I’ve laid out here. I am opposed to hate crimes legislation, not because hate crimes don’t exist but because officially designating them as such accepts the categories of otherness that we are trying to eliminate. I consider affirmative action problematic for the same reason. I say problematic because in some instances it may have been the only way. Still, look up Derrick Bell; or debates over school funding. Real estate taxes are not a good way to fund local education.
And as far as Europe is concerned, specifically Germany: no, it has not come to terms with its past. But to understand that you have to read between the lines, and look at post war culture, not just post war regulations. And this blog does not pay attention to gaps and elisions, only to confirmed sightings. If I describe German culture as numb, as autistic, (and I’m not the only one to say that) the response is incredulity.
Here is another example of unacceptable imprecision on my part:
I think it is all well and good for the people of the United States to think of themselves as “having an interest” in the reform movement in Iran. I am opposed to the government of the US claiming to “have an interest” in that movement. you can extend that logic to other examples, even within a country. Liberals assume that rules can be made to express concern. But rules don’t measure the distance for example between concern and pity, and that is the most important distinction in interaction among people. Conservatives think concern can not exist outside the family, and liberals think it can be legislated. Both are wrong. Liberals can not accept the fact of ambiguity in language because then rules would not be enough to solve our problems. The one thing liberals, who are individualists at heart, are unwilling to change is themselves. That’s why Brighouse and Bertram and others think only in terms of “ideas” because ideas are concrete, they can be measured.
The logic of this site begins with naturalistic epistemology and individualism, described as “true.” Both are fictional constructs. As fictional as the the pretense that laws are enough to make a society whole.

And as to free speech and corporations as people, I’m not the one who measures the social as as an aspect of the economic or as a gathering of contract forming monads. I described the process of socialization of my Norwegian stockbroker. He did not choose to be this way: he is not a rational actor, and never has been. He is not “free.” He is constrained by obligations within the world that made him, as we all are. And for an asshole, he’s not a bad guy.

And as far as being polite. I don’t apologize to members of the libertarian cult, or their drinking partners. I suppose i should just attack Tyler Cowen’s idea’s and not him. But these people are his friends and somehow can’t even condemn the ideas, because he is their friend. I’m sure some people feel the same way about Charles Murray.
I have no patience left. And I’ve earned the right to feel contempt.

SE: I’ve never met Tyler Cowen in person, nor did I support the ban on the Sex Pistols (“even as a child”), nor do I take kindly to people who describe me as a “Zionist concern troll”. I could go on with the further itemization of absurd things you have said in this thread. I might say “I’ve earned the right to feel contempt”, but “get some help” might be more appropriate.